JOHNSON & JOHNSON v. THE ESTATE OF ELIZABETH ADAMS, BY ADRIAN ADAMS

Opinion

THIRD DIVISION DOYLE, P. J., REESE and BROWN, JJ.

NOTICE: Motions for reconsideration must be physically received in our clerk’s office within ten days of the date of decision to be deemed timely filed. https://www.gaappeals.us/rules

DEADLINES ARE NO LONGER TOLLED IN THIS COURT. ALL FILINGS MUST BE SUBMITTED WITHIN THE TIMES SET BY OUR COURT RULES.

October 28, 2021

In the Court of Appeals of Georgia A21A0832. JOHNSON & JOHNSON et al. v. SHIVER. A21A0935. JOHNSON & JOHNSON et al. v. SHRODES et al. A21A1038. JOHNSON & JOHNSON et al. v. AMIN et al. A21A1294. JOHNSON & JOHNSON et al. v. ADAMS et al.

REESE, Judge.

Johnson & Johnson and Johnson & Johnson Consumer Companies Inc.

(collectively, “J&J”) appeal from orders denying their motions to dismiss the

complaints filed against them in four cases in various state and superior courts. In

each case, J&J alleged that the plaintiffs failed to meet the prima facie impairment

standard under Georgia’s Asbestos Claims Act1 (the “Act”). Because the plain

1 See OCGA § 51-14-1 et seq. language of the Act required the trial court in each of these cases to dismiss the

complaint without prejudice, we reverse.

Each of the complaints in the four cases before us were brought by the executor

of the estate of a decedent who had allegedly used Johnson’s Baby Powder and

Johnson & Johnson’s Shower to Shower (collectively, “Talc Product”) on a regular

basis over a number of years during her lifetime. According to the complaints, as a

result of the decedents’ cumulative exposures to asbestos contained in the Talc

Product, they developed terminal ovarian cancer. Attached to each of the complaints

was a case-specific affidavit and medical report of Dr. Richard Kradin, which is

discussed in more detail after a brief overview of the procedural history of each

appeal at issue here.

Case No. A21A0832

According to the complaint in Case Number A21A0832, Irene Shiver used the

Talc Product on a daily basis for 42 years of her life, beginning in 1972. Shiver was

diagnosed in July 2016 with ovarian cancer. Her cause of death in June 2019 was

listed as metastatic papillary serous carcinoma. Kirt Shiver, as executor of the estate,

filed a tort complaint against J&J and others. The State Court of Dougherty County

2 denied J&J’s motion to dismiss, and we granted J&J’s application for interlocutory

appeal.

Case No. A21A0935

The complaint in Case Number A21A0935 alleged that Catherine Shrodes used

the Talc Product for 26 years, beginning in 1984, and that she was diagnosed with

ovarian cancer in 2017. Shrodes died from complications of advanced ovarian

carcinoma in July 2019. After the State Court of Cobb County denied J&J’s motion

to dismiss the complaint, we granted interlocutory review.

Case No. A21A1038

According to the complaint in Case Number A21A1038, Susie Amin used the

Talc Product daily from 1978 until 2012. She was diagnosed in September 2013 with

ovarian carcinoma and died from complications of ovarian cancer in June 2016. The

Superior Court of Spalding County denied J&J’s motion to dismiss the complaint, and

we granted J&J’s application for interlocutory appeal.

Case No. A21A1294

According to the complaint in Case Number A21A1294, Elizabeth Adams used

the Talc Product from 1973 until 2017, when she was diagnosed with ovarian cancer.

The cause of her death in September 2017 was listed as malignant neoplasm of the

3 left ovary. The State Court of Gwinnett County denied J&J’s motion to dismiss, and

we granted interlocutory review.

“The interpretation of a statute is a question of law, which is reviewed de novo

on appeal. And when only a question of law is at issue, we owe no deference to the

trial court’s ruling[.]”2 With these guiding principles in mind, we turn now to J&J’s

claim of error.

In each of the four appeals before us, J&J argues that the trial courts erred by

not dismissing the complaints because the plaintiffs failed to proffer evidence that

other potential causes were not the sole or most likely cause of the injury at issue.

Before we turn to construction of the relevant statutes, we begin with a history

of the Act to place this dispute in context. In passing the Act, the General Assembly

recognized that it was “proper . . . to support and protect the Georgia courts from the

massive litigation expense and the crowding of trial dockets caused by asbestos . . .

litigation[.]”3 The General Assembly noted that diseases caused by asbestos often had

2 Catoosa County v. Rome News Media, 349 Ga. App. 123, 126 (825 SE2d 507) (2019) (punctuation and footnote omitted). 3 OCGA § 51-14-1 (8).

4 long latency periods,4 and that concerns about statutes of limitations could prompt

unimpaired claimants to bring suit to protect their ability to recover.5 The General

Assembly explicitly stated that the purpose of the Act was to give priority to

claimants who could demonstrate actual physical harm or illness caused by asbestos

and defer the rights of potential claimants who had not yet suffered physical

impairment.6

To this end, the General Assembly required, inter alia, that any plaintiff filing

an asbestos claim after May 1, 2007, include with the complaint “a medical report .

. . setting forth the medical findings necessary to establish prima-facie evidence of

physical impairment[.]”7 The consequence for failure to satisfy this requirement is

clear: “If the trial court determines that the plaintiff has failed to establish prima-facie

evidence of physical impairment, it shall dismiss the plaintiff’s complaint without

prejudice.”8

4 OCGA § 51-14-1 (4). 5 OCGA § 51-14-1 (7). 6 OCGA § 51-14-1 (b). 7 OCGA § 51-14-6 (2) (A). 8 OCGA § 51-14-6 (2) (E) (emphasis supplied).

5 In the context of an asbestos claim alleging cancer other than mesothelioma9

that accrued on or after May 1, 2007, “prima-facie evidence of physical impairment”

means:

that a board certified pulmonologist, board certified pathologist, board certified occupational medicine physician, or board certified oncologist has signed a medical report certifying to a reasonable degree of medical probability [1] that the exposed person has or had a cancer other than mesothelioma; [2] that the cancer is a primary cancer; [3] that exposure to asbestos was a substantial contributing factor to the diagnosed cancer; and [4] that other potential causes (such as smoking) were not the sole or most likely cause of the injury at issue[.]10

As noted above, in each of the cases on appeal, the plaintiffs attached to the

complaint an affidavit and case-specific medical report of Richard Kradin, M.D., who

attested that he was, inter alia, a board-certified pulmonologist and pathologist. In

each case, Kradin stated in Paragraph 7 of his affidavit that the decedent had been

diagnosed with ovarian cancer, which was a primary cancer. Included with each

9 If a claimant alleges mesothelioma caused by exposure to asbestos, no further prima-facie evidence of physical impairment is required. OCGA § 51-14-3 (17) (B) (i). The prima-facie evidence requirements for asbestos claims alleging nonmalignant injury are the most stringent of the three categories. See OCGA § 51-14-3 (17) (B) (iii). 10 OCGA § 51-14-3 (17) (B) (ii).

6 affidavit was a medical report that indicated the materials Kradin had reviewed, that

summarized the decedents’ medical and exposure history, and that made ancillary

findings such as the statistical probability of each decedent’s exposure to asbestos in

the Talc Product.

Kradin concluded in each affidavit that, “to a reasonable degree of medical

probability that [the decedent’s] cumulative exposure to [the Talc Product]

contaminated with asbestos, was a substantial contributory factor in causing her

ovarian carcinoma.”

Kradin further opined that, based on the information and background he

reviewed, “there would be no other environmental exposures that would be the sole

or most likely cause of the ovarian carcinoma that caused her death.” It is this

language that J&J contends does not meet the requirements of the Act.

In interpreting the Act’s prima-facie evidence of physical impairment

requirement, “we apply the fundamental rules of statutory construction that require

us to construe the statute according to its terms, to give words their plain and ordinary

meaning, and to avoid a construction that makes some language mere surplusage.”11

11 Lyman v. Cellchem Intl., 300 Ga. 475, 477 (796 SE2d 255) (2017) (citation and punctuation omitted).

7 “We cannot by construction add to, take from, or vary the meaning of unambiguous

words in a statute.”12

Under the plain language of the Act, the medical report must certify to a

reasonable degree of medical probability, inter alia: “[3] that exposure to asbestos was

a substantial contributing factor to the diagnosed cancer; and [4] that other potential

causes (such as smoking) were not the sole or most likely cause of the injury at

issue[.]”13 While Kradin’s affidavit tracked the statutory language of the first three

prongs, with respect to the fourth prong, he concluded only that there were no other

“environmental exposures” that were the sole or most likely cause. Kradin did not

opine as to whether there were any other “potential causes.”

The trial courts’ application of OCGA § 51-14-3 (17) (B) (ii) in each of these

cases renders the fourth requirement of the medical report mere surplusage. For

example, in Case Numbers A21A1038 and A21A1294, the courts used identical

language to find that “[Kradin’s] conclusion that [the decedents’] exposure[s] to

asbestos through [the Talc Product] were substantial contributory factors to causing

12 City of Albany v. GA HY Imports, 348 Ga. App. 885, 891 (1) (825 SE2d 385) (2019) (citation and punctuation omitted). 13 OCGA § 51-14-3 (17) (B) (ii) (emphasis supplied).

8 [their] ovarian cancer necessarily excludes the possibility that other potential causes

were not the sole or most likely cause of [their] ovarian cancer.” In other words, the

courts found that by certifying the third prong, Kradin necessarily certified the fourth

prong. We cannot, by construction, take from the plain language of the statute,14

which required certification of the third and the fourth prongs.

The plaintiffs respond that, to the extent that the third and fourth prongs are

redundant, the example of smoking defines and limits the category of items under the

doctrine of ejusdem generis. Thus, the plaintiffs argue, Kradin’s affidavits are

sufficient because they ruled out environmental exposures as the sole or most likely

cause of the plaintiffs’ ovarian carcinomas.

The doctrine of ejusdem generis is unhelpful in this case as the statute only

contains one specific example: “other potential causes (such as smoking).” Under the

canon of ejusdem generis,

when a statute lists by name several particular things, and concludes with a general term of enlargement, this latter term is to be construed as being ejusdem generis (i.e., of the same kind or class) with the things specifically named, unless, of course, there is something to show that a wider sense was intended. Here, however, because there is only one

14 See City of Albany, 348 Ga. App. at 891 (1).

9 specific [potential cause], followed by a general [potential cause], and not a list of specific items separated by commas and followed by a general or collective term, the canon is inapplicable.15

The trial courts also erred in supplementing Kradin’s conclusions based on

their readings of the supporting medical documentation. For example, the state court

in Case Number A21A0935 found:

[A]lthough [Kradin’s] affidavit does not include verbatim the specific word for word language of the statute, the affidavit in the context of the medical documentation submitted with it, does comply with the statutory requirement concerning other potential causes of the decedent’s condition and satisfies the purpose of the statute. The court notes that the medical information on which the affidavit is based does not include any indication that any non-environmental factor would have been a potential cause of [Shrodes’s] cancer.

Similarly, in Case Number A21A0832, the state court found that, because there

was evidence that Kradin had considered Shiver’s past medical history and negative

health problems, he “effectively determined” that other potential causes were not the

15 Warren v. State, 294 Ga. 589, 591, n. 2 (755 SE2d 171) (2014) (citations and punctuation omitted).

10 sole or most likely cause. The statute is clear, however, that it is the medical expert16

who must certify to a reasonable degree of medical probability that other potential

causes were not the sole or most likely cause of the injury at issue.17

Kradin did not certify “that other potential causes (such as smoking) were not

the sole or most likely cause of the injury at issue[.]” Because the plain language of

the statute required this certification, the trial courts should have dismissed the

complaints without prejudice.18

Judgments reversed. Doyle, P. J., and Brown, J., concur.

16 Specifically, the medical report must be signed by “a board certified internist, board certified pulmonologist, board certified pathologist, board certified occupational medicine physician, or board certified oncologist[.]” OCGA § 51-14-3 (17) (B) (ii). 17 OCGA § 51-14-3 (17) (B) (ii). 18 See OCGA § 51-14-6 (2) (E).